The Rogak Report: 18 Dec 2008 ** Municipal Liability - Prior Written Notice **
IF "BIG APPLE" MAP SENT TO CITY DOES NOT DESCRIBE THE DEFECT THAT CAUSED THE ACCIDENT, THEN CITY HAS NO PRIOR WRITTEN NOTICE
D'Onofrio et al. v. City of New York 2008 NY Slip Op 09860 Decided on December 18, 2008 Court of Appeals Smith, J. Edited by Lawrence N. Rogak
The Court of Appeals has held here that when a municipality (here, the City of New York) is given "prior written notice" of a sidewalk defect by way of a map with symbols, those symbols not only have to be clear and unambiguous, but they also have to describe the same kind of defect that allegedly injured the plaintiff.
"In each of these cases, the issue is whether a map submitted to New York City by Big Apple Pothole and Sidewalk Protection Corporation gave the City the notice of a sidewalk defect that is required by the Pothole Law (Administrative Code of City of NY § 7-201 [c] ). We hold that neither map adequately identified the defect."
"Pasquale D'Onofrio and Ida Shaperonovitch fell and were injured while walking in New York City. They and their spouses sued the City for their injuries. The City defended the lawsuits on the basis of the Pothole Law, which says in relevant part:
'No civil action shall be maintained against the city for . . . injury to person . . . sustained in consequence of any . . . sidewalk . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice.'""Plaintiffs asserted that Big Apple maps had given the 'written notice' that the law requires."
"Big Apple is a corporation established by the New York State Trial Lawyers Association for the purpose of giving notices in compliance with the Pothole Law. It does so through maps on which coded symbols are entered to represent defects. For example, a straight line is used for a raised or uneven portion of a sidewalk, a circle for a hole or hazardous depression, a line with a triangle at each end for an extended section of cracks and holes in a sidewalk, and so forth. In each of these cases, Big Apple submitted a map to the City before the accident; the map had a symbol at the place where the accident happened; and the issue is whether the symbol was sufficient notice of the defect complained of."
"The notice issue was submitted to the jury in both cases, and both juries found the notice adequate. In D'Onofrio, however, Supreme Court held the notice insufficient as a matter of law, set aside the verdict and granted judgment in the City's favor; the Appellate Division affirmed. In Shaperonovitch, Supreme Court denied the City's post-trial motion to set aside the verdict, and entered judgment in plaintiffs' favor; this judgment, too, was affirmed by the Appellate Division. We granted leave to appeal in both cases, and now affirm in D'Onofrio and reverse in Shaperonovitch."
"The symbol used in D'Onofrio was a straight line, indicating '[r]aised or uneven portion of sidewalk.' There is no evidence, however, from which the jury could have found that such a defect caused Mr. D'Onofrio's injury. He testified that, as he was walking over a grating, both his feet became caught almost simultaneously, causing him to fall forward. He said that he felt the grating move, and that he observed broken cement in the area; he attributed his fall to 'the movement of the grating, plus the broken cement, the combination of the two.' It is not completely clear how the accident happened, but there is no evidence that Mr. D'Onofrio walked across a raised or uneven portion of a sidewalk, even on the assumption that the grating is part of the sidewalk. A photograph of the area where he fell does not show any surface irregularity or elevation. Since the defect shown on the Big Apple map was not the one on which the claim in D'Onofrio was based, the lower courts in that case correctly set aside the verdict and entered judgment in the City's favor."
"The problem in Shaperonovitch is in a way the reverse of that in D'Onofrio: the nature of the defect that caused the accident is clear, but the symbol on the Big Apple map is not. Ms. Shaperonovitch testified that she tripped over an 'elevation on the sidewalk.' No unadorned straight line, the symbol for a raised portion of the sidewalk, appears on the Big Apple map at the relevant location. The Shaperonovitch plaintiffs rely on a symbol that does appear there: it is a line with a diamond at one end and a mark at the other that has been variously described as a poorly drawn X, the Hebrew letter shin, or a pitchfork without the handle. No symbol resembling this appears in the legend to the map. A Big Apple employee, called to testify by the City, acknowledged that Big Apple 'did not notify the City of any raise' in the location where Ms. Shaperonovitch fell."
"Plaintiffs in Shaperonovitch argue that the symbol on the map is 'ambiguous' and that its interpretation is for the jury. We disagree; we do not see how a rational jury could find that this mark conveyed any information at all. Because the map did not give the City notice of the defect, the City was entitled to judgment as a matter of law."
"Accordingly, in D'Onofrio v City of New York, the order of the Appellate Division should be affirmed, with costs. In Shaperonovitch v City of New York, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed."
One judge dissented.